Suresh Kumar vs State of Jammu & Kashmir and Others

J.P. Singh, J.—Suresh Kumar, petitioner, seeks the issuance of a direction in the nature of certiorari for quashing order No. 1443 of 2000

dated 12.10.2000 issued by Senior Superintendent of Police, Jammu, whereby his services as Constable in Jammu & Kashmir Police have been

terminated. Reinstatement and consequential benefits, including pecuniary and otherwise, in the event of reinstatement too have been sought by the

petitioner in SWP No, 1594/2001. The petitioner submits that he was selected vide DPO Order No. 337 of 1999 dated 24.02.1999 as a

Constable in District Police, Jammu, and was willing and prepared to undergo basic training. He submits that Constables- Devinder Singh, Jatinder

Singh and Jagdev Singh, were also selected by the same recruitment board, which selected him. They too are stated to have absented rather than

joining the training. Their services are still intact and they continue to serve as Constables whereas the petitioner has been singled out for hostile

discrimination. The petitioner submits that his discharge under Rule 187 of the Police Rules contained in J&K Police Manual Volume 1, is

unwarranted. He submits that the order impugned is stigmatic having been passed without holding any inquiry and following the principles of natural

justice.

Sh. R. S. Thakur, learned Counsel appearing for petitioner, while reiterating the factual basis laid by the petitioner in his petition submits that the

absence being the ground of discharge, necessarily required an inquiry under Rule 359 of the Police Rules. He adds that omission of the

respondents to hold inquiry renders the impugned order illegal besides being unconstitutional. Sh. Thakur refers to 'Major Singh v. State of Punjab

and Ors.' reported as AIR 2001 SC 2272; 'Prithipal Singh v. State of Punjab and Ors.' reported as AIR 2001SC 2287; 'State of Punjab and Ors.

v. Sukhwinder Singh' reported as AIR 2005 SC 3477; 'State of Kerala and Anr. v. P.V. Neelakandan Nair and Ors.' reported as AIR

2005SCW 3489; 'Punjab National Bank v. R.L. Vaid and Ors.' reported as AIR 2004 SC 4708; and SACI Allied Products Ltd., U.P. Vs.

Commissioner of Central Excise, Meerut, in support of his submission.

Ms. Safina Beigh, learned Assistant Advocate General appearing on behalf of respondents, vehemently argued that the petitioner having refused

to undergo basic training and instead remaining absent has proved him to be unfit for retention in service and this finding of the Superintendent of

Police, during the period of probation of the petitioner, did not require the holding of any inquiry, for, holding of inquiry or following of principles of

natural justice in such a case, is neither contemplated by law nor warranted in respect of the members of a belt force, whose primary object is to

train their cadre in such a way that they prove effective and meaningful in discharging their duties. She submits that the State of J&K, which has

been fighting militancy since long, can ill afford to retain those persons in service in the belt force who are not even prepared to take their basic

training, thereby disproving their worth for being retained in the service. Learned Counsel, while distinguishing 'State of Punjab and Ors. v.

Sukhwinder Singh' reported as AIR 2005 SC 3477relied upon by Sh. Thakur, submits that in view of the law reiterated by the Hon'ble Supreme

Court of India in the judgment, there was no need for holding any inquiry in the present case because no inquiry is contemplated when a

probationer constable is discharged under Rule 187 of the Police Rules. She submits that Sukhwinder Singh's case is on all fours and supports the

validity of the impugned order.

I have considered the submissions of learned Counsel for the parties and gone through the judgments cited by learned Counsel for the petitioner.

Rule 187 of the Police Rules, gives jurisdiction and authority to a Superintendent of Police to discharge a Constable who is found unlikely to prove

an efficient police officer at any time within three years of enrolment. Rule 187 reads, thus:

DISCHARGE OF INEFFICIENTS:- A constable who is found unlikely to prove an efficient police officer may be discharged by the

Superintendent at any time within three years of enrolment.

I will now refer to the order impugned in the writ petition for understanding the true import of the order passed by the Superintendent of Police.

Impugned order reads, thus:

Copy of order No. 1443 of 2000 dated 12.10.2000 received from the office of SSP/Jammu vide his office endstt. No. 12110-14/DPO dated

17.10.2000, and copy to the all concerned for info, and n/a reads as under:

Recruit Constable Suresh Kumar No. 3304/J who was appointed as Constable in District Police Jammu, vide DPO Order No. 337 of 1999

dated 24.02.1999, on his selection by the Recruitment Board. The Recruit Constable deserted from District Police Line Jammu, when he was to

be deputed for basic training. The Constable after remaining unauthorizedly absent from DPL Jammu w.e.f. 18.08.2000 appeared before the

undersigned on 12.10.2000 in orderly Room with an application for permitting him to resume duties.

He was given personnel hearing to which he stated that due to his father's death on 23.01.2000, he had to perform some religious rituals. He was

asked about duration of the said ritual to which he replied that it was one day only. He has been asked as to why did he not report on 19th or 20th

Aug. 2000 and why has he come after one month and twenty four days, which is a long period. To this he had no satisfactory reply. It is a case of

bad material which has been recruited and the unsuitability has come to fore now when he deserted the force after learning about his being sent for

basic training. Therefore acting in the best interest of the department and also in the larger interest of public for which this organization exists, we

cannot have such unreliable persons who would desert the force at critical end.

Accordingly using my authority vested in me under Rule 187 of J&K Police Manual, I order the removal of the said constable from the rolls of this

District with effect from the date, he absented un-authorizedly viz. 18.08.2000. The Post of Constable No. 3304/J is hereby declared vacant.

Perusal of the impugned order makes it explicit that the Superintendent of Police was satisfied, after hearing the petitioner, that it was a case of

bad material which had been recruited and his unsuitability had come to the fore when he deserted the force after learning about his being sent for

basic training. Superintendent of Police has further found that it will be in the interest of department as also in the larger interest of public, not to

retain the petitioner as Constable in the police force.

Nothing has been brought on records by the petitioner as his explanation for refusing to join the essential basic police training except pleading

that some constables, though similarly situated, have not been discharged Omission of the authorities to take action against similarly situated

persons does not, in my opinion, confer any right of retention in the petitioner or for that matter offend Article 14 of the Constitution. Article 14 of

the Constitution of India does not contemplate a negative concept of equality. Petitioner cannot, thus, derive any benefit on this plea of his, which is

utterly misconceived.

This apart, the petitioner does not appear to have been discharged only on the ground of absence, which according to learned Counsel was only

the basis for discharging the petitioner and according to Sh. Thakur, warranted regular inquiry under Rule 359 of the Police Rules.

I do not accept the proposition propounded by Sh. Thakur that an inquiry, in the circumstances of the case, was warranted under Rule 359 of

the Police Rules and that the order impugned is stigmatic in character. I am, however, inclined to accept the submission of Ms. Beigh that no

inquiry in case of probationer is contemplated by Police Rules in view of the finding of the Superintendent of Police that the petitioner was a bad

material enrolled in the police force, and was not required to be retained in service because of his refusal to go for the police basic training.

I am supported in taking the view that no inquiry is contemplated in case of discharge of a probationer in terms of Rule 359 of Police Rules by

Rule 359(10) of the Police Rules, which was brought to my notice by Ms. Beigh while repelling the submission of Sh. Thakur that inquiry in the

circumstances of the case was an unavoidable necessity. Rule 359(10) is reproduced hereunder:

359(10) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period

of probation.

'State of Punjab and Ors. v. Sukhwinder Singh' reported as AIR 2005 SC 3477, the latest judgment on the subject is a complete answer to

the submission of Sh. Thakur and this judgment takes note of earlier judgments on the subject. Hon'ble Supreme Court of India after referring to

various judgments on the point held as follows:

It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or

reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not make inquiries

for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every

case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind

his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to

decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The

decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the

appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the

departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and

made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a

probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at

a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry ""for the

purpose of imposing punishment"" and an order of discharge or termination of service as a result thereof ""punitive in character"", the fundamental

difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly

wrong.

In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of

discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was

habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of

Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus

between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service

will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone

completely wrong in drawing the inference that the order of discharge dated 16-3-1990 was, in fact, based upon the misconduct and was,

therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent

was on probation having been appointed about eight months back. As observed in Ajit Singh and Others Vs. State of Punjab and Another, the

period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant and if

he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the

prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee

would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in

error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule

16.24(ix) of the Rules.

In view of what has been held by Their Lordships of the Hon'ble Supreme Court in paragraphs Nos. 18 & 19 in 'Sukhwinder Singh's' case

(supra), I do not find any illegality in the order impugned in the writ petition, for the same is neither punitive nor stigmatic. Rule 187 supports the

action of the respondents in dispensing with the service of the petitioner, who was found to be a bad material and unfit to become a responsible

police officer.

Absence is not the basis of taking action against the petitioner. The action has been taken on the ground of his having been found to be a bad

material on the basis of his act of refusal to undergo basic police training.

I, thus, do not find any merit in this petition, which is, accordingly, dismissed, but without any order as to costs.